Opinion
2013-07099
09-24-2014
German BEDOYA, appellant, v. Ashwanti KUMAR, et al., respondents.
Wellerstein & Associates, P.C., Maspeth, N.Y. (Hedva Wellerstein of counsel), for appellant. McNicholas, Lee & Cestaro, P.C., Flushing, N.Y. (Shawn M. Cestaro and Louis A. Badolato of counsel), for respondents.
Wellerstein & Associates, P.C., Maspeth, N.Y. (Hedva Wellerstein of counsel), for appellant.
McNicholas, Lee & Cestaro, P.C., Flushing, N.Y. (Shawn M. Cestaro and Louis A. Badolato of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered May 9, 2013, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
In support of their motion for summary judgment dismissing the complaint, the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical region of his spine (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 ). Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.